IN THE CASE OF: Mr. BOARD DATE: 7 January 2015 CASE NUMBER: AR20140001098 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. THE APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests his bad conduct discharge be upgraded to general, under honorable conditions. 2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to receive VA Benefits. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 3 January 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 25 October 2010 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD RE-4 e. Unit of assignment: 4th BCT (R)(P), 82d Abn Div, Fort Bragg, NC f. Current Enlistment Date/Term: 2 February 2006, 4 years g. Current Enlistment Service: 3 years, 7 months, 19 days h. Total Service: 3 years, 7 months, 19 days i. Time Lost: 410 days j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 25U10 Sig Supt Sys Spec m. GT Score: 113 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan q. Decorations/Awards: ARCOM, ACM-w/2CS, NDSM, OSR, NATO MDL, CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 2 February 2006 for a period of 4 years. He was 18 years old at the time of entry and a high school graduate. His record indicates he served in Afghanistan; achieved the rank of SPC/E-4; and earned several awards to include an ARCOM. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 23 November 2009, the applicant was found guilty by a special court-martial for going AWOL (080420-090323). 2. He was sentenced to a Bad Conduct Discharge, reduction to the grade of E-1, forfeiture of $933.00 pay per month for four months, and confinement for four months. 3. On 19 December 2009, the applicant was released from confinement pursuant to a pre-trial agreement. Evidence in the record shows the applicant was placed on excess leave 18 January 2010 pending completion of an appellate review of his punitive discharge. 4. On 22 March 2010, the sentence was approved except for the part extending to a bad conduct discharge. The applicant was credited with 73 days of confinement against the sentence to confinement. 5. The record of trial was forwarded to the United States Army Court of Criminal Appeals. On 25 May 2010, the court affirmed the approved findings of guilty. On 23 August 2010, Special Court-Martial Order Number 18 ordered the sentence of a bad conduct discharge to be executed. 6. The applicant was separated from the Army on 25 October 2010, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4. 7. The applicant’s service record shows he had 410 days of lost time; 349 days for going AWOL from 20 April 2008 until his return 23 March 2009 and 61 days for being confined by the military authorities 18 October 2009 until 18 December 2009; as a result of being placed in pre-trial confinement pending court-martial and court-martial sentencing. The DD Form 214 under review also shows the applicant had 281 days of excess leave 18 January 2010 until 25 October 2010. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Incomplete charge sheet, dated 11 July 2008, for desertion 21 May 2008 until an unknown dated. 2. Four DA Form's 4187 (Personnel Action) which changed the applicant's duty status from present for duty to absent without leave, absent without leave to dropped from the rolls, present for duty to confined military authorities, and confined military authorities to present for duty. 3. A report of return of absentee (DD Form 616) dated 23 March 2009, indicating the applicant was apprehended 23 March 2009 after going AWOL 20 April 2008. 4. Special Court-Martial Order Number 3, dated 22 March 2010, which shows the applicant, was found guilty of going AWOL (080420-090323). His punishment consisted of a Bad Conduct Discharge, reduction to the grade of E-1, forfeiture of $933.00 pay per month for four months, and confinement for four months. The sentence was approved and, except for that part of his sentence extending to a bad conduct discharge was ordered to be executed. The applicant was credited with 73 days of confinement against the sentence to confinement. 5. United States Army Court of Criminal Appeals decision letter, dated 25 May 2010, which indicates that on consideration of the applicant's entire record, they held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly those findings of guilty and the sentence were affirmed. 6. Special Court-Martial Order 18, dated 23 August 2010, which ordered the portion of the sentence extending to the bad conduct discharge to be executed. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and a copy of his DD Form 214 for the period of service under review. POST-SERVICE ACTIVITY: None was provided with the application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. 2. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. 3. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to warrant clemency. 2. There was a full consideration of all faithful and honorable service as well as the incidents of misconduct. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 3. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant submitted no issues of equity or propriety to be considered by the board. 4. The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to receive VA Benefits. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 5. The records show the proper discharge and separation authority procedures were followed in this case 6. In view of the foregoing, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny clemency. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 7 January 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 0 No Change: 5 Reason Change: NA No Change: NA (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: NA Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: NA Other: NA Legend: AMHRR - Army Military Human Resource Record FG - Field Grade IADT – Initial Active Duty Training RE - Reentry AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20140001098 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1